DOJ-OGR-00004720.jpg

Case 1:20-cr-00330-PAE Document 295 _ Filed 05/25/21 Page 13 of 26 Michigan, 568 U.S. 313, 319 (2013) (distinguishing between a “merits-related ruling” during trial that “concludes proceedings absolutely” under the Double Jeopardy Clause and “termination of the proceedings . . . on a basis unrelated to factual guilt or innocence of the offense” (internal quotation marks omitted)). In order for jeopardy to attach to counts dismissed pursuant to a plea agreement, the dismissal must involve some adjudication of facts that go to the merits. For instance, “a plea agreement in which the court was directly involved in a defendant’s decision to plead guilty to two counts, in exchange for an agreement to drop with prejudice a third count, all on the basis of findings of certain facts which support that agreement, might perhaps constitute a pretrial fact-finding that implicated jeopardy in its proper sense of risk of exposure.” Dionisio, 503 F.3d at 84 (footnote omitted). Here, the defendant was never placed in jeopardy in the United States District Court for the Southern District of Florida. She was never indicted, acquitted, convicted, or punished for the offenses in Counts Five and Six. See United States v. Olmeda, 461 F.3d 271, 279 (2d Cir. 2006) (explaining that “[i]n essence, the Double Jeopardy Clause protects criminal defendants against” second prosecutions after acquittal or conviction, or “multiple punishments for the same offense” (quotation marks omitted)). At no point did the defendant even risk conviction. That analysis is unaffected by the NPA. Again, neither the defendant nor Epstein was ever indicted by a grand jury sitting in the Southern District of Florida nor found guilty of any federal offense. NPA or no NPA, jeopardy never attached for the offenses in the proposed USAO-SDFL indictment, which was of course never filed. See United States v. Herrera, No. 02 Cr. 477 (LAK), 2002 WL 31133029, at *1 (S.D.N.Y. Sept. 23, 2002) (“The analysis of the Korfant factors in which defendant would have the Court engage will become necessary if, and only if, jeopardy attaches on one of the indictments ....”). And the NPA would not have provided protection to the DOJ-OGR-00004720